A landmark court ruling regarding the obligations of recipients of HUD funds to “affirmatively further fair housing” should be a wake-up call for every jurisdiction in Texas including the state. the duty to affirmatively further fair housing is hardly ever taken seriously in Texas. The court case indicates that the consequences for ignoring the law may be becoming more serious.
Fair housing and civil rights groups in Texas have begun discussing potential enforcement actions that might be brought against Texas cities in the wake of this ruling.
NEW YORK, Feb. 25 /PRNewswire-USNewswire/ — In a landmark decision, U.S. District Court Judge Denise Cote has found that Westchester County falsely claimed that it was meeting its obligation to affirmatively further fair housing (“AFFH”). The ruling – rejecting the County’s motion for summary judgment – instead granted partial summary judgment to the Anti-Discrimination Center (“ADC”).
The Court found that the County made claims to the federal government seeking payment from the federal treasuryand that the claims – more than 1,000 of them over six years – were “false or fraudulent.” The full text of the decision, along with other materials related to the case, is available at http://www.antibiaslaw.com/wfc.
With several important issues decided against it, Westchester must now stand trial facing potential liability in excess of $150 million. Commenting on the decision, Craig Gurian, ADC’s Executive Director said: “We hope the County will now recognize that it faces critical problems of residential segregation, and that it makes sense to work with us to craft a sensible resolution of this matter that will enhance affordable housing opportunities throughout Westchester.”
As a recipient of federal housing funds, Westchester was obligated to conduct an “analysis of impediments to fair housing choice” (an “AI”), including race-based impediments, and take appropriate actions to overcome all such impediments to fair housing that existed. This obligation has special importance in the Westchester County Urban Consortium where, as the Court found, “over half of the municipalities in the Consortium had African-American populations of 3% or less.”
The Court ruled that no reasonable jury could find that the County conducted the required analysis of race-based impediments, and went on to conclude that the County did not comply with its additional obligation to take appropriate steps to overcome impediments to fair housing choice:
“Without a targeted analysis of race as a potential impediment to fair housing, the County was unprepared to grapple with the second component of its AFFH duty to take appropriate action to overcome the effects of any racial discrimination or segregation it might identify as an impediment.”
The Court made clear that it was not a minor defect in the County’s performance:
“[T]he County’s AIs during the false claims period utterly failed to comply with the regulatory requirement that the County perform and maintain a record of its analysis of the impediments to fair housing choice in terms of race. This failure is only compounded by the County’s failure to follow the guidance provided by HUD.”
The Court described the County’s attempt to claim that its actions actually addressed race as “post hoc analysis.”
In a strong endorsement of the enforceability of the AFFH requirements, the Court rejected the County’s contention that basically any course of conduct could be labeled “AFFH.” Judge Cote wrote that:
“The AFFH certification was not a mere boilerplate formality, but rather was a substantive requirement, rooted in the history and purpose of the fair housing laws and regulations, requiring the County to conduct an AI, take appropriate actions in response, and to document its analysis.”
The Court also rejected what it described as the County’s “fallback argument” that income could be used as a proxy for race: “As a matter of logic, providing more affordable housing for a low income racial minority will improve its housing stock but may do little to change any pattern of discrimination or segregation. Addressing that pattern would at a minimum necessitate an analysis of where the additional housing is placed,” something the County did not do.
Indeed, as one of ADC’s experts found, segregation for wealthier African-American households in Westchester was actually as bad or worse than segregation for less well-off households.
Westchester also claimed that a failure to keep a promise to AFFH did not count as a false claim violation. The Court held differently: “each time the County submitted a request for payment of those funds it made an impliedly false certification.”
The Court also found:
- During the false claims period (2000-2006), the County would not acquire any land for affordable housing without the agreement of the municipality where the land was located.
- The County did not analyze whether affordable housing production from 1992 though early-2006 had the effect of increasing or decreasing racial diversity in the neighborhood in which the housing was built.”
The Center’s lead counsel is the firm of Relman & Dane, PLLC. Craig Gurian, the Center’s Executive Director said, “I want to thank the attorneys at Relman & Dane for their extraordinary efforts on the Center’s behalf.”